After disgracing himself, The Project and Channel 10 by grossly misrepresenting action against Bill Leak by the HRC, Waleed Aly reduces the infamous QUT case to something less than trivial.

Example two: Three QUT students who were sued for comments they posted on Facebook after being ejected from an indigenous only computer lab.

Does section 18C outlaw Facebook comments? Well, not according to the judge who threw the case out.

Joshua Forrester (PhD Candidate in Law, Murdoch University),  (Director of Postgraduate Research and Senior Lecturer in Law, Murdoch University) and  (Lecturer in Law, Murdoch University), in a jointly written article, obviously regard the matter as very much more significant than does wealthy lawyer Aly.

[QUT employee Cindy] Prior complained to QUT about [the Facebook] comments, which were promptly removed. However, Prior was ultimately unhappy with QUT’s handling of the matter and lodged a complaint in the Australian Human Rights Commission (AHRC). The AHRC conciliated Prior’s complaint. However, it did not contact the students directly about the complaint or the conciliation conference. Instead, it left this task to QUT. Powell did not know about Prior’s complaint until after the conciliation conference.

Conciliation failed, and Prior commenced proceedings in the Federal Circuit Court against QUT, certain QUT employees, and a number of QUT students including Wood, Thwaites and Powell. Prior’s claim was for A$247,570.52. Prior alleged that the students had breached 18C. She also alleged that QUT and its employees had breached section 9 of the RDA.

A number of students settled with Prior. Wood, Thwaites and Powell brought an application for Prior’s case to be summarily dismissed.

18C’s supporters point to decisions like this one to say that the system works: a weak claim was dismissed at an early stage. However, this case in fact highlights significant problems with 18C.

First, the process itself is the punishment. A summary dismissal application involves the filing of pleadings, affidavits and submissions, and appearing in court. There are significant costs in time, money and stress. A dispute that arose in May 2013 has taken until November 2016 to resolve. Tony Morris QC and Michael Henry have acted pro bono for Wood, Thwaites and Powell. But most people are not so fortunate.

In applications like these, legal fees frequently exceed A$10,000, and often go much higher. Most people simply cannot afford to defend themselvesand legal aid is unavailable. Hence, it is unsurprising that other QUT students settled their cases with Prior for A$5,000, even though they probably could have successfully defended themselves.

In addition to the costs in time and stress, and despite being “cleared”, the QUT students’ reputations have suffered enormously. The stain of being an alleged racist will be hard to remove. Thwaites has abandoned becoming a school teacher because parents or students may Google his name and find he was accused of racism.

Second, the AHRC’s conduct in this case has been disgraceful. Judge Jarrett’s dismissal of this case raises the question of why the AHRC did not initially reject Prior’s complaints against the students. That the AHRC proceeded to conciliation may have given Prior false hope that her case against them had merit. Nick Cater notes that, from 2001 to 2005, the AHRC rejected almost 30% of complaints. He also writes that under its most recent Presidents, Catherine Branson and Gillian Triggs, less than 5% have been rejected. The AHRC must exercise better judgement.

The November 2016 dismissal did not conclude the matter, however:

Lawyers for Cindy Prior want a judge to find it is illegal under section 18C to “say or do anything” which calls into question the ­appropriateness of special measures which advantage an ethnic or ­racial minority, the Federal Court heard yesterday.

The legal argument is at the heart of an attempted appeal by Ms Prior after the indigenous former Queensland University of Technology administrative assistant’s racial hatred case against students over Facebook posts was thrown out, with more than $200,000 in costs awarded against her.

Judge John Dowsett asked Ms Prior’s barrister Greg McIntyre SC: “Does that mean then that people can’t refer in any adverse way to any form of discrimination?”

Mr McIntyre replied in the ­affirmative, saying it could be unlawful under section 18C of the Racial Discrimination Act if such comments caused humiliation or intimidation to reasonable members of a group such as indigenous students of QUT. “I can’t see that opposing segregation is saying something about race,’’ Justice Dowsett said. “It’s about human attitudes, isn’t it?”

Tony Morris QC, the lawyer for students Jackson Powell and Calum Thwaites, described the arguments of Ms Prior’s legal team as wrong “in all of their ­glorious absurdity and monstrosity”.

The case was ultimately resolved earlier this month:

An attempt by Cindy Prior to restart her racial vilification case against QUT students was dashed today by a Federal Court judge who called for a halt to legal proceedings subjecting the men to unnecessary misery.

Justice John Dowsett said in Brisbane this afternoon that the lawyers for Ms Prior and for the students must use their knowledge, experience and skills “to bring these legal proceedings to an end”.

He made the call as he delivered his reasons in a 56-page judgment which comprehensively rejected Ms Prior’s attempt to run an appeal of an earlier lower court’s dismissal of her bid to sue the students for $250,000 over Facebook posts.

Other than the three QUT students, the big losers here are the taxpayer funders of the HRC, QUT’s legal defence and the judiciary. Hmm, it’s truly amazing that a former administrative assistant can afford to mount such a substantial legal action, this even though QUT has announced it “would be neither financially prudent nor appropriate” to pursue Prior for costs, which must be massive.

Finally, Aly thinks this should be no big deal for the three QUT students but that’s understandable; I wouldn’t either if I was wealthy lawyer, TV celebrity and Gold Logie winner.

Click here for video of Aly in action – Bill Leak at 3:40; QUT at 5:11.


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